Punjab-Haryana High Court
Sonu @ Raju vs State Of Punjab on 3 January, 2012
Author: Jasbir Singh
Bench: Jasbir Singh, Sabina
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D 779-DB of 2007
Date of decision: 03.01.2012
Sonu @ Raju
.....Appellant
Versus
State of Punjab
......Respondent
CRA-D 684-DB of 2007
Balwinder Singh @ Billu
.....Appellant
Versus
State of Punjab
......Respondent
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mrs.Justice Sabina
Present: Mr.Harpreet Singh Rakhra, Advocate for the appellants
For Mr.K.V.Singh, Advocate
Mr.Rajesh Bhardwaj, Addl.A.G. Punjab
Jasbir Singh, J.
CRA-D 779-DB of 2007 and 2
CRA-D 684-DB of 2007
This order will dispose of two appeals bearing No. CRA-D 779-DB of 2007 titled as Sonu @ Raju versus State of Punjab and CRA-D 684-DB of 2007 Balwinder Singh @ Billu versus State of Punjab.
The above named appellants have filed these appeals against judgment and order dated 9.5.2007, vide which, they were convicted for commission of an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) and sentenced to undergo rigorous imprisonment for a period of 20 years and to pay a fine of Rs.two lac each with a default clause.
From the above appellants and one Makhan Singh, 20 bags of poppy husk, weighing 32 kgs each, were recovered from them on 6.11.2004 at 10.30 a.m. within the revenue estate of village Heero Kalan, police station Bhikhi. For keeping in possession, the above contraband, they failed to produce any licence.
In this case, the process of law was set in motion on receipt of an intimation from Inspector Harmik Singh PW3 (investigating officer), which led to registration of an FIR (Ex.PK) on 6.11.2004 at 5 p.m. against the appellants and Makhan Singh.
The trial Judge has noted the following facts regarding case of the prosecution:-
"2. xxx xxx that on November 06, 2004 Inspector Harmik Singh of Police Station Bhikhi, alongwith a few other police officials, was present at the drain of village Heero Kalan in connection with patrolling and checking of suspected persons. PW Dhana Singh met them there and was joined in the police party. After some time, a tractor bearing registration No.PB- CRA-D 779-DB of 2007 and 3 CRA-D 684-DB of 2007 13B-5809, along with trolley, of red colour, came from the side of village Dhaipi. Investigating officer got the tractor trolley, which was being driven by accused Sonu, stopped on suspicion and found that some bags were loaded in the trolley and two persons were sitting on the bags. Investigating officer told all the three accused, who disclosed theiri names as Sonu alias Raju, Makhan Singh and Balwinder Sigh alias Billu, one after the other, that he suspected some intoxicating material in the bags lying in the tractor trolley, and that they had a right to have search of the tractor trolley in the presence of a Gazetted officer or a Magistrate. All the three of them opted to have search in the presence of a Gazetted officer on the spot. Three memoranda were recorded in this respect. Investigating officer then flashed a wireless message to requisition a Gazetted officer on the spot. After a while DSP Balbir Singh Khaira reached the spot in the company of his bodyguards. Investigating officer apprised said DSP Balbir Singh Khaira of the facts and circumstances of the case. DSP Balbir Singh Khaira then disclosed his identity before the aforesaid three accused and told them, lone after the other, that he was a Deputy Superintendent of Police and a Gazetted officer and asked them, one after the other, if they wanted to have search of the tractor trolley before him on the spot or before any other Gazetted officer or a Magistrate. All the three accused opted to have the search on the spot before said DSP Balbir Singh Khaira. Three memoranda were recorded in this respect. CRA-D 779-DB of 2007 and 4 CRA-D 684-DB of 2007
3. On being so instructed by DSP Balbir Singh Khaira, Investigating officer searched the bags lying in the tractor as per laid down procedure, recovered Poppy husk from all the 20 bags which were found loaded in the tractor-trolley, separated two samples of 100 grams each from each of the twenty bags, made them into parcels and put serial numbers thereon as 1, 1A, 2, 2A and so on, sealed the samples and remainder weighing 31.800 kilograms, each bag after making them into parcels, with his seal bearing impression 'HS', prepared sample seal, handed over the seal after use to PW Dhana Singh, took the sample seal, sealed parcels of samples and remainder, and tractor trolley bearing registration no.PB- 13B-5809 in police possession by recording a memo, on failure of the aforesaid three accused to produce any permit or licence to carry the contraband, wrote a note and sent it to the police station where a formal First Information Report was recorded by ASI Nazir Singh. The Investigating officer then formally arrested accused Sonu alias Raju, Makhan Singh and Balwinder Singh alias Billu after making them aware of the grounds of their arrest, searched their persons, recorded necessary memoranda, prepared rough site plan with correct marginal notes, recorded statements of the witnesses and on return to the police station, investigating officer, Inspector Harmik Singh being the station house officer, kept the three accused in police lock up and sealed parcels of case property, as also the tractor trolley under his supervision in Malkhana CRA-D 779-DB of 2007 and 5 CRA-D 684-DB of 2007 of the police station, dispatched a special report in terms of Section 57 of the Act, produced the accused and case property before the Area Magistrate on 7.11.2004 along with an inventory and application. On the inventory and application Area Magistrate passed necessary orders. There being no space available in Judicial Malkhana, the SHO brought the case property back to the police station and kept in his custody. On 8.11.2004 he completed the FSL form, handed it over along with duly sealed sample parcels and sample seal to Constable Satpal Singh for being deposited in Forensic Science Laboratory, Punjab, Chandigarh. Said constable Satpal Singh got a docket prepared from the office of Senior Superintendent of Police, Mansa, deposited the above-said articles in Forensic Science Laboratory, Punjab, Chandigarh on 9.11.2004 and brought the receipt issued by that Laboratory to the Station House Officer/ Investigating officer of this case."
As per FSL report (Ex.PW) on analysis of 20 sample parcels, the material contained therein, was found to be poppy straw. Investigating officer on completion of investigation, put the final report in Court for trial. The case was committed to the competent Court for adjudication. Necessary documents were supplied to the appellants and Makhan Singh as per provisions of Section 207 Cr.P.C. They were charge sheeted, to which they pleaded not guilty and claimed trial. The prosecution produced five witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution's evidence, statements of the accused CRA-D 779-DB of 2007 and 6 CRA-D 684-DB of 2007 were recorded under Section 313 Cr.P.C. They were given an opportunity to explain the incriminating circumstances brought on record by the prosecution, they claimed innocence and false implication. However, they led no evidence in defence.
It is necessary to mention here that Makhan Singh, a co- accused, after getting his statement recorded under Section 313 Cr.P.C., did not appear in Court. His trial was separated from the trial of the appellants as per provisions of Section 317 Cr.P.C. by the trial Judge by passing an order on 2.5.2007. Vide the above order, proceedings were also initiated against Makhan Singh under Section 82/83 Cr.P.C.
The trial Judge on appraisal of evidence found the appellants - accused guilty, accordingly they were convicted and sentenced as mentioned in earlier part of this order. Hence, these appeals.
Counsel for the appellants has vehemently contended that there is no independent corroboration to the case of the prosecution. No effort was made to join any independent witness at the time of alleged recovery. As per case of the prosecution, one Dhana Singh was associated in the investigation, however, he was not produced in Court. By making reference to some discrepancies here and there in the statements made by PW1 to PW5, counsel argued that case of the prosecution is doubtful for which benefit should go to the appellants. It was specifically stated that there is nothing on record to show that the appellants were previous convicts. In view of above, it is stated that punishment awarded to them is on the higher side. It is prayed that appeals be allowed, conviction and sentence awarded to the appellants be set aside and they be acquitted of the charges framed against them.
CRA-D 779-DB of 2007 and 7CRA-D 684-DB of 2007 Prayer made has vehemently been opposed by the State counsel, who argued that the case of the prosecution is proved on record by PW1 to PW5. There is compliance to the provisions of Section 50 of the Act. The case property, after seizure, was produced before the competent Court. The appellants made no attempt to intimate the Magistrate concerned that they have falsely been implicated in this case. He prayed that appeals having no substance be dismissed. The State counsel has failed to indicate any evidence on record to show that the appellants were the previous convicts.
After hearing counsel for the parties, this Court is convinced that so far as conviction of the appellants-accused for committing violation of Section 15 of the Act is concerned, there is no scope to interfere in the same. Merely because, case of the prosecution rests upon statements made by the official witnesses, it cannot be discarded. The Court is only to look into the deposition made by the official witnesses in a threadbare manner and if truthful, their statements can be made basis for convicting an accused. In this case, the Court has analyzed the statements made by PW1 to PW5 in a very careful manner and is of the opinion that testimony made by those witnesses is believable. The mode and manner of recovery is stated by Inspector Harmik Singh PW3 (investigating officer), who has stated that on 6.11.2004, he was available within the revenue estate of village Heero Kalan, police station Bhikhi in connection with patrolling at a check barrier. Tractor with a loaded trolley was stopped, which was driven by the appellant Sonu @ Raju, Makhan Singh and appellant Balwinder Singh @ Billu were sitting on the bags lying in the trolley. The investigating officer asked all the three accused separately that he suspect some intoxicating CRA-D 779-DB of 2007 and 8 CRA-D 684-DB of 2007 material in the bags loaded in the trolley. They were intimated that they had a right to get the search conducted in presence of a gazetted officer or a magistrate. All the accused opted for search through a gazetted officer. The prosecution has brought on record memos Ex.PF, Ex.PG and Ex.PH in that regard. Those documents are thumb marked by all the accused, witnessed by Dhana Singh and Jasvarinder Singh and also by the investigating officer. As per desire expressed by the accused, DSP Balbir Singh Khaira (PW2) was requested to come to the place of occurrence. On his arrival, this witness has also cautioned all the three accused regarding their right, to get the search of the bags, lying in the trolley, conducted through a magistrate or a gazetted officer. The accused again opted that search be conducted by the above DSP. Memos separately thumb marked by all the accused have been brought on record as Ex.PB, Ex.PC and Ex.PD. Thereafter, search was conducted. Out of the 20 bags, poppy husk was recovered. Two sample parcels measuring 100 grams from each bag were separated and were sealed with the seals of the investigating officer and PW2 DSP Balbir Singh Khaira. The case property and the accused were brought to the police station and on the next day, the investigating officer filed an application Ex.PU before the concerned magistrate to verify recovery of the case property which was produced in Court. In the said application, it was also mentioned that the accused, if they want, can get second sample taken out of the case property and get the same photographed. The concerned magistrate at Mansa passed the following order on 7.11.2004:-
"Present: SHO PS Bhikhi Twenty (20) bags of poppy husk weighing 31 kg 800 gms (each) bearing seal HS 40 samples of the same each weighing CRA-D 779-DB of 2007 and 9 CRA-D 684-DB of 2007 100 gms bearing seal HS, one tractor bearing No.PB 13B- 5809 alongwith trolley produced before me. Seal on the case property as well samples are found intact. Same are seen and attested.
Sd/-
7.11.04 JMIC (D) Mansa"
Despite opportunity given all the accused did not raise their grievance of false implication before the concerned magistrate. They did not opt to get second sample separated from the case property and get it photographed.
The investigating officer has deposed in Court that the tractor in question was registered in the name of one Hazoora Singh (PW5), who has brought on record a copy of the agreement mark 'Z' to state that the tractor was sold to Makhan Singh - accused for an amount of Rs.90,000/- on 21.5.1998. The investigating officer has further stated in Court that sample parcels were sent to the Forensic Science Laboratory for examination through PW1 Constable Satpal Singh. As per report of the Forensic Science Laboratory (Ex.PW), material contained therein was found to be poppy straw. Despite asking, the appellants-accused failed to show any licence to keep in their possession above contraband. Despite lengthy cross-examination, the defence has failed to shatter testimony of the above witnesses. Recovery in this case was effected from a trolley. Even then the investigating officer ensured the compliance of the provisions of Section 50 of the Act. The procedure of investigation appears to be very fair and impartial.CRA-D 779-DB of 2007 and 10
CRA-D 684-DB of 2007 On each count, statement made by the investigating officer PW3 has been corroborated by DSP Balbir Singh Khaira (PW2). This witness has deposed that on being called to the place of occurrence, he reached there and introduced himself to the accused one by one. They were made aware regarding their right to get the search conducted through a magistrate or a gazetted officer. All the accused consented that search of the trolley be conducted by the above witness. This witness has proved on record memos Ex.PB, Ex.PC and Ex.PD prepared in that regard. The witness has also deposed regarding taking of samples out of 20 bags (two each). Those samples and the remaining material were sealed. The seal was handed over to PW Dhana Singh after its use. This witness has also stood test of the cross-examination.
Merely because Dhana Singh was not produced in Court is no ground to disbelieve the testimony of the official witnesses. Dhana Singh was not examined as a witness as he was won over by the accused. These days, it is very difficult to get an independent witness and if available and joined in investigation, there is a tendency to resile from the statement, may be with connivance of the accused. Huge quantity of contraband was recovered from the trolley. Tractor being driven by the appellant Sonu @ Raju and appellant Balwinder Singh @ Billu was sitting on 20 bags loaded in the trolley. There is nothing on record to show that the appellant Sonu was not aware regarding the contents of the material loaded in the trolley. So is the case with regard to the appellant- Balwinder Singh @ Billu. Despite opportunities given, the accused failed to move to the Court stating that they have falsely been implicated in this case. When their statements were recorded under Section 313 Cr.P.C. except stating that false case has CRA-D 779-DB of 2007 and 11 CRA-D 684-DB of 2007 been planted upon them, no further explanation was given. They did not lead any evidence in defence.
In view of above, it is not possible for this Court to interfere in the judgment convicting the appellants-accused for commission of an offence under Section 15 of the Act.
So far as sentence awarded to the appellants-accused is concerned vide the impugned order dated 9.5.2007, it appears to be on the higher side. Both the appellants are young. There is nothing on record to show that they were the previous convicts. They need to be given an opportunity to settle in life. They are the sole bread earners for their families. Taking note of the above facts, this Court is of the opinion that awarding punishment of rigorous imprisonment for a period of twelve years with fine of Rs.one lac each for the above offence will serve the purpose. In default of payment of fine, the appellants are directed to undergo rigorous imprisonment for a period of one year.
With the above modification in the impugned order dated 9.5.2007, appeals stand disposed of.
A copy of this order be placed on the file of connected case.
(Jasbir Singh)
Judge
03.01.2012 (Sabina)
gk Judge